FSA restrictions first piece of ObamaCare to be challenged

WASHINGTON — Recent restrictions imposed on flexible spending accounts appear to be the first piece of ObamaCare to be challenged by the new Congress.

Sen. Kay Bailey Hutchison, R-Texas, and Rep. Erik Paulsen, R-Minn., on Thursday respectively introduced The Patients’ Freedom to Choose Act, a bill that would repeal two provisions in the Obama healthcare law that limit a patient’s choice in how to use consumer-directed health savings plans, to the Senate and House of Representatives.

“Under the health law, the federal government is stifling patients’ flexibility and freedom to use health benefit accounts that have helped make care more affordable for tens of millions Americans,” Hutchison stated. “Our bill strikes these arbitrary limitations and puts patients back in charge of how and when they’ll use [health savings account] and [flexible spending account] benefits.”

The move was met with wide support from retail pharmacy associations. “The legislation introduced by Sen. Hutchison and Rep. Paulsen is a critical step to ensure that the 19 million American households who have FSAs regain their ability to purchase [over-the-counter] medicines with pre-tax dollars,” stated Scott Melville, president and CEO of the Consumer Healthcare Products Association. “With the country’s annual cough, cold and flu season upon us, now is the time for Congress to support this bill and reduce the cost of health care for millions of consumers.”

Retail associations, including the National Association of Chain Drug Stores and the Food Marketing Institute, added their support of the legislation.

On Jan. 1, a provision in the new healthcare legislation took effect, prohibiting individuals from using funds from either HSAs or FSAs to purchase OTC medications without a prescription. In addition, starting in 2013, the Obama healthcare law will institute a $2,500 federal cap for all FSA contributions. More than 80% of all large employers that offer an FSA to their employees include a limit that is more than the $2,500 threshold, Hutchison noted.

A recent survey found that more than 90% of Americans preferred to seek treatment with OTCs before seeing a healthcare provider, the CHPA stated. In addition, nearly 90% of the physicians surveyed recommended that patients use OTC medicines before seeing their physicians. Under the new restriction, however, an overwhelming majority of physicians surveyed believed there will be an increased burden on medical professionals.

NORTH WALES, Pa. — Teva earlier this week announced it had submitted a request to the Food and Drug Administration to allow for the sale of the emergency contraceptive Plan B One-Step to women under the age of 17 years without a prescription, according to published reports.

The switch of Plan B from prescription-only to a de facto behind-the-counter status marked a tumultuous debate for the FDA under the Bush administration. Consequently, many advocates are gearing for another political battle. Many women’s groups seek wider access, while conservative groups would like to greatly limit access altogether because they believe Plan B is an abortion alternative.

According to reports, Teva gave the FDA additional data based on a study of actual use of the contraceptive in girls between the ages of 11 years and 16 years. It expects the agency to rule within 10 months.

NACDS expresses support of The Patients’ Freedom to Choose Act of 2011

ALEXANDRIA, Va. — Companion legislation, which seeks to change a provision in the healthcare-reform law and permit Americans to use their flexible spending accounts and health savings accounts to buy over-the-counter medications without a prescription, has the support of the National Association of Chain Drug Stores.

Known as The Patients’ Freedom to Choose Act of 2011 — introduced by Rep. Erik Paulsen, R-Minn., and Sen. Kay Bailey Hutchison, R-Texas — the bill seeks to change a provision in the healthcare-reform law, the Patient Protection and Affordable Care Act, and permit Americans to use their FSAs and HSAs to purchase OTC medications without a prescription.

Currently under the law, patients first must receive a prescription for an OTC medication before they can be reimbursed from their pre-taxed FSA or HSA.

"By restoring consumers’ ability to use FSAs and HSAs for [OTC] products, these bills will help ensure that Americans can continue to conveniently utilize their local pharmacies for cost-saving OTCs," stated NACDS president and CEO Steve Anderson.

"An estimated 35 million working Americans rely on voluntary contributions of pre-tax dollars to FSAs to help meet their basic healthcare needs," Anderson added. "Prohibiting the use of FSA funds to purchase these medicines, or requiring a prescription or other documentation from a doctor, limits access and eliminates the cost efficiencies associated with these medicines."

In an incremental victory for NACDS and for allied voices on this issue, the Internal Revenue Service in late December 2010 announced that FSA debit cards would be allowed to be used for OTC medications for which patients have a prescription. Previously, the IRS had indicated that such debit cards would not be permitted for use in purchasing medication affected by the new policy, even if a consumer had obtained a prescription for the medications. The legislation introduced by Sen. Hutchison and Rep. Paulsen, however, would provide a more comprehensive remedy to this issue, the NACDS stated.

"We appreciate the leadership and commitment of Rep. Paulsen and Sen. Hutchison in introducing their companion bills," Anderson stated.

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